City may settle case alleging excessive force by 3 police officers

LAS CRUCES — With a summer trial looming, attorneys and city officials are preparing for a January conference to settle a civil rights lawsuit filed against three Las Cruces Police officers, alleging unlawful arrest and use of excessive force.

According to court documents and the plaintiff's attorney, the suit stems from a December 2009 investigation into a report of vandalism — a car had been keyed in an apartment parking lot on the 200 block of West Madrid Avenue.

Acting on a tip that a Hispanic man had been seen by the scratched car and then later entering a neighboring apartment, police officers Jeremy Story, Manuel Frias and Vincent Shadd went to that door to investigate.

Steven Romero answered an officer's knock. Unarmed, Romero didn't threaten the officers, according to court documents. He turned to go back inside, unaware of why the policemen were there.

Romero alleges in court documents that Story grabbed his shoulder and Frias "performed a leg sweep," causing him to fall, chip a front tooth, cut his lip and bruise his face. In facts cited by U.S. District Judge Robert C. Brack, "Romero did not resist, but officers pinned (him) down on the sidewalk."

Six months later, in 2010, Romero filed the lawsuit in U.S. District Court, contending that the officers violated his Fourth Amendment rights, through an unlawful arrest and excessive force.

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Among the claims: Police lacked "reasonable suspicion" that Romero committed a crime — the neighbor who called the police didn't actually see Romero damage the car, and gave a vague description of the suspect; and didn't have probable cause for the subsequent evading-obstructing arrest.

Attorneys for the police officers filed a motion for summary judgment In November of 2010. They cited qualified immunity, a defense that generally protects government officials from of civil rights liability in cases commonly called "section 1983 cases." Romero's attorney, Dean Clark, said such motions are common.

Brack, in an opinion filed last September, wrote that the officers were not entitled to qualified immunity. He noted that qualified immunity is the norm for all government officials, "but the plainly incompetent or those who knowingly violate the law."

He had filed a similar ruling in 2011, but the officers appealed it. The 10th Circuit Court of Appeals upheld part Brack's earlier decision and vacated another part for a procedural issue, remanding it back to Brack. Eventually, Brack ruled the officers were not entitled to qualified immunity on either unlawful arrest or excessive force charges.

All three officers are still serving with LCPD, spokesman Det. Frank Torres said.

Last month the court scheduled the settlement conference for Jan. 23. The Las Cruces City Council will hold a closed meeting Jan. 7 to discuss "threatened or pending litigation" in the Romero case.

Any settlement above $35,000 would have to be approved by City Council, city attorney Rusty Babington said. He said meetings can touch on an array of topics.

"It can go from settling or not settling," Babington said. " ... Sometimes they discuss the nature of the case."

Clark couldn't say whether he expected a settlement.

"My experience in these is that the parties are usually pretty far apart," he said.

Because this is a civil rights case, Clark said, the city could be forced to pay Romero's attorney's fees, "which would be six figures easily."

Clark said that in preparation for the trail, he has presented the facts of the case to mock jurors.

"I think people are offended by the way this case is handled," he said.

James Staley may be reached at 575-541-5476. Follow him on Twitter @auguststaley